On November 3, 2016, Beijing IP Court issued a decision of imposing a fine to the trademark owner in a non-use cancellation case for forging of evidence.
In 2013, Fujian Qianchuan Co., Ltd. ("Qianchuan") filed a petition of cancelling the trademark "家家JIA JIA" designating "edible oil" on the ground of non-use in consecutive three years before China Trademark Office ("CTMO"). CTMO decided to cancel the mark due to insufficient evidence of use on April 11, 2014. Mr. Li, who is the trademark owner, appealed the decision before Trademark Review and Adjudication Board ("TRAB") with argument of continuous use from 2010 to 2012 together with evidence of use. TRAB overturned the decision of CTMO and decided to uphold the registration of the said mark.
Qianchuan was not satisfied with the decision of TRAB and initiated a lawsuit before Beijing IP Court against TRAB. The evidence of use submitted by Mr. Li included notarized copies of product test report, invoices, advertisement registration certificate, Islamic food business approval certificate. On the other hand, plaintiff also provided the original copies of the corresponding documents but it was different from the copies provided by Mr. Li. Furthermore, it was discovered that the advertisement registration certificate provided by Mr. Li in the review proceedings of TRAB is different from the copy provided in the administrative litigation before Beijing IP Court. The date of advertisement indicated as February 29, 2013 in one copy was not available in another copy. Certain part of evidence has obvious trace of alteration and fabrication. Mr. Li failed to provide original copy of the suspected documents. Based on the evidence above, Beijing IP Court determined that the evidence submitted by Mr. Li are false evidences and issued a decision of imposing a fine of CNY 10,000 (USD 1,458) . It is the first time that a fine is imposed to punish the dishonest behavior of the party in an administrative litigation by Beijing IP Court.
In the trademark non-use cancellation proceedings, it is not uncommon to find false evidence provided by the trademark owner to keep the mark alive. Such evidence may survive in CTMO or TRAB proceedings but it will be seriously challenged in administrative proceedings where highest standard of evidence is implemented. It is required that the evidence provided the court should be authentic. What's more, the evidence should be collected in a legitimate way and it should be related to the fact to be proved. False evidence will usually fail to fulfill the requirements and become inadmissible by the court. Petitioners of non-use cancellation are suggested to appeal the decision into administrative litigation to challenge the suspected evidence of use provided by the trademark owner.